77R10735 PAM-F By Pitts H.B. No. 2033 Substitute the following for H.B. No. 2033: By Solomons C.S.H.B. No. 2033 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to requiring notice to purchasers of real property located 1-3 in a certificated service area of a utility service provider 1-4 regarding the cost or availability of water or sewer service. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Subchapter G, Chapter 13, Water Code, is amended 1-7 by adding Section 13.257 to read as follows: 1-8 Sec. 13.257. NOTICE TO PURCHASERS. (a) In this section, 1-9 "utility service provider" means a utility, a water supply or sewer 1-10 service corporation, or a special utility district organized and 1-11 operating under Chapter 65. 1-12 (b) If a person proposes to sell or convey unimproved real 1-13 property located in a certificated service area of a utility 1-14 service provider, the person must give to the purchaser written 1-15 notice as prescribed by this section. An executory contract for 1-16 the purchase and sale of real property that has a performance 1-17 period of more than six months is considered a sale of real 1-18 property under this section. 1-19 (c) This section does not apply to: 1-20 (1) a transfer of title under any type of lien 1-21 foreclosure; 1-22 (2) a transfer of title by deed in cancellation of 1-23 indebtedness secured by a lien on the property conveyed; 1-24 (3) a transfer of title by reason of a will or probate 2-1 proceeding; 2-2 (4) a transfer of title to a governmental entity; 2-3 (5) a transfer of title to property located within the 2-4 corporate limits of a municipality; 2-5 (6) a transfer of title to property that receives 2-6 water or sewer service from a utility service provider on the date 2-7 the property is transferred; 2-8 (7) a transfer of title by a trustee in bankruptcy; 2-9 (8) a transfer of title by a mortgagee or beneficiary 2-10 under a deed of trust who acquired the property: 2-11 (A) at a sale conducted under a power of sale 2-12 conferred by a deed of trust or other contract lien; 2-13 (B) at a sale under a court judgment foreclosing 2-14 a lien; or 2-15 (C) by a deed in lieu of foreclosure; 2-16 (9) a transfer of title from one co-owner to another 2-17 co-owner; 2-18 (10) a transfer of title between spouses or to a 2-19 person in the lineal line of consanguinity of the transferor; or 2-20 (11) a transfer of a mineral interest, leasehold 2-21 interest, or security interest. 2-22 (d) The notice must be executed by the seller and read as 2-23 follows: 2-24 "The real property, described below, that you are about to 2-25 purchase is located in the water or sewer service area of 2-26 ___________________, which is the utility service provider 2-27 authorized by law to provide water or sewer service to your 3-1 property. No other retail public utility is authorized to provide 3-2 water or sewer service to your property. There may be special 3-3 costs or charges that you will be required to pay before you can 3-4 receive water or sewer service. There may be a period required to 3-5 construct lines or other facilities necessary to provide water or 3-6 sewer service to your property. You are advised to contact the 3-7 utility service provider to determine the cost that you will be 3-8 required to pay and the period, if any, that is required to provide 3-9 water or sewer service to your property. 3-10 "The undersigned purchaser hereby acknowledges receipt of the 3-11 foregoing notice at or before the execution of a binding contract 3-12 for the purchase of the real property described in the notice or at 3-13 closing of purchase of the real property. 3-14 ______________________ 3-15 Date 3-16 _______________________________ 3-17 Signature of Purchaser 3-18 "(Note: Correct name of utility service provider is to be 3-19 placed in the appropriate space.) Except for notices included as 3-20 an addendum to or paragraph of a purchase contract, the notice must 3-21 be executed by the seller and purchaser, as indicated." 3-22 (e) The notice must be given to the prospective purchaser 3-23 before the execution of a binding contract of purchase and sale. 3-24 The notice may be given separately or as an addendum to or 3-25 paragraph of the contract. If the seller fails to provide the 3-26 notice required by this section, the purchaser may terminate the 3-27 contract. If the seller provides the notice at or before the 4-1 closing of the purchase and sale contract and the purchaser elects 4-2 to close even though the notice was not timely provided before the 4-3 execution of the contract, it is conclusively presumed that the 4-4 purchaser has waived all rights to terminate the contract and 4-5 recover damages or pursue other remedies or rights under this 4-6 section. Notwithstanding any provision of this section to the 4-7 contrary, a seller, title insurance company, real estate broker, or 4-8 examining attorney, or an agent, representative, or person acting 4-9 on behalf of the seller, company, broker, or attorney, is not 4-10 liable for damages under Subsection (m) or (n) or liable for any 4-11 other damages to any person for: 4-12 (1) failing to provide the notice required by this 4-13 section to a purchaser before the execution of a binding contract 4-14 of purchase and sale or at or before the closing of the purchase 4-15 and sale contract if: 4-16 (A) the utility service provider did not file 4-17 the map of the certificated service area with the commission 4-18 depicting the boundaries of the service area of the utility service 4-19 provider as shown in the real property records of the county in 4-20 which the service area is located; and 4-21 (B) the commission did not maintain an accurate 4-22 map of the certificated service area of the utility service 4-23 provider as required by this chapter; or 4-24 (2) unintentionally providing a notice required by 4-25 this section that is incorrect under the circumstances before the 4-26 execution of a binding contract of purchase and sale or at or 4-27 before the closing of the purchase and sale contract. 5-1 (f) The purchaser shall sign the notice or the purchase and 5-2 sale contract that includes the notice to evidence the purchaser's 5-3 receipt of the notice. 5-4 (g) At the closing of the purchase and sale contract, a 5-5 separate copy of the notice with current information shall be 5-6 executed by the seller and purchaser, acknowledged, and 5-7 subsequently recorded in the real property records of the county in 5-8 which the property is located. In completing the notice to be 5-9 executed by the seller and purchaser at the closing of the purchase 5-10 and sale contract, any seller, title insurance company, real estate 5-11 broker, or examining attorney, or any agent, representative, or 5-12 person acting on behalf of the seller, company, broker, or 5-13 attorney, may rely on the accuracy of the information required by 5-14 this chapter that is last filed in the real property records by the 5-15 utility service provider and the accuracy of the map of the 5-16 certificated service area of the utility service provider. Any 5-17 information taken from the map is, for purposes of this section, 5-18 conclusively presumed to be correct as a matter of law. Any 5-19 subsequent seller, purchaser, title insurance company, real estate 5-20 broker, examining attorney, or lienholder may rely on the map of 5-21 the certificated service area filed in the real property records by 5-22 the utility service provider. 5-23 (h) In completing the notice required to be given to a 5-24 prospective purchaser before the execution of a binding contract of 5-25 purchase and sale, any seller, and any person completing the notice 5-26 on behalf of the seller, may rely on the information contained in 5-27 the map of the certificated service area filed in the real property 6-1 records by the utility service provider. Any subsequent seller, 6-2 purchaser, title insurance company, real estate broker, examining 6-3 attorney, or lienholder may rely on the map of the certificated 6-4 service area filed in the real property records by the utility 6-5 service provider. 6-6 (i) If the notice is given at closing as provided by 6-7 Subsection (g), a purchaser, or the purchaser's heirs, successors, 6-8 or assigns, may not maintain an action for damages or maintain an 6-9 action against a seller, title insurance company, real estate 6-10 broker, or lienholder, or any agent, representative, or person 6-11 acting on behalf of the seller, company, broker, or lienholder, by 6-12 reason of the seller's use of the information filed with the 6-13 commission by the utility service provider or the seller's use of 6-14 the map of the certificated service area of the utility service 6-15 provider filed in the real property records to determine whether 6-16 the property to be purchased is within the certificated service 6-17 area of the utility service provider. An action may not be 6-18 maintained against a title insurance company for the failure to 6-19 disclose that the described real property is included within the 6-20 certificated service area of a utility service provider if the 6-21 utility service provider did not file in the real property records 6-22 or with the commission the map of the certificated service area. 6-23 (j) Any purchaser who purchases real property in a 6-24 certificated service area of a utility service provider and who 6-25 subsequently sells or conveys the property is conclusively 6-26 considered on the closing of the subsequent sale to have waived any 6-27 previous right to damages under this section. 7-1 (k) It is the express intent of this section that any 7-2 seller, title insurance company, examining attorney, vendor of 7-3 property and tax information, real estate broker, or lienholder, or 7-4 any agent, representative, or person acting on behalf of the 7-5 seller, company, attorney, vendor, broker, or lienholder, may rely 7-6 for the purpose of completing the notice required by this section 7-7 on the accuracy of the map of the certificated service area of the 7-8 utility service provider filed in the real property records by the 7-9 utility service provider. 7-10 (l) Except as otherwise provided by Subsection (e), if any 7-11 sale or conveyance of real property within the certificated service 7-12 area of a utility service provider fails to comply with this 7-13 section, the purchaser may file a suit for damages under Subsection 7-14 (m) or (n). 7-15 (m) If the sale or conveyance of real property fails to 7-16 comply with this section, the purchaser may file a suit for damages 7-17 in the amount of all costs related to the purchase of the property 7-18 plus interest and reasonable attorney's fees. The suit for damages 7-19 may be filed jointly or severally against the individual or entity 7-20 that sold or conveyed the property to the purchaser. Following the 7-21 recovery of damages under this subsection, the amount of the 7-22 damages shall be paid first to satisfy all unpaid obligations on 7-23 each outstanding lien on the property and the remainder of the 7-24 damage amount shall be paid to the purchaser. On payment of all 7-25 damages respectively to each lienholder and the purchaser, the 7-26 purchaser shall reconvey the property to the seller. 7-27 (n) If the sale or conveyance of the property fails to 8-1 comply with this section, the purchaser may file a suit for damages 8-2 in an amount not to exceed $5,000, plus reasonable attorney's fees. 8-3 (o) A purchaser may not recover damages under both 8-4 Subsections (m) and (n). An entry of a final decision awarding 8-5 damages to the purchaser under either Subsection (m) or (n) 8-6 precludes the purchaser from recovering damages under the other 8-7 subsection. Notwithstanding general or special law or the common 8-8 law of this state to the contrary, the relief provided under 8-9 Subsections (m) and (n) provides the exclusive remedy for a 8-10 purchaser aggrieved by the seller's failure to comply with this 8-11 section. Any action for damages under this section does not apply 8-12 to, affect, alter, or impair the validity of any existing vendor's 8-13 lien, mechanic's lien, or deed of trust lien on the property. 8-14 (p) A suit for damages under this section must be filed by 8-15 the earlier of: 8-16 (1) a date on or before the 90th day after the date 8-17 the purchaser discovers: 8-18 (A) the cost the purchaser is required to pay to 8-19 the utility service provider to obtain water or sewer service; or 8-20 (B) the period required by the utility service 8-21 provider to provide water or sewer service; or 8-22 (2) the fourth anniversary of the date the property 8-23 was sold or conveyed to the purchaser. 8-24 (q) Notwithstanding any other provision of this section to 8-25 the contrary, a purchaser may not recover damages under this 8-26 section if the person: 8-27 (1) purchases an equity interest in real property and, 9-1 in conjunction with the purchase, assumes any liens, including a 9-2 purchase money lien; and 9-3 (2) does not require proof of title by abstract, title 9-4 insurance policy, or any other method. 9-5 SECTION 2. (a) This Act takes effect September 1, 2001. 9-6 (b) The change in law made by this Act applies only to a 9-7 transfer of property that occurs on or after the effective date of 9-8 this Act. For purposes of this section, a transfer of property 9-9 occurs before the effective date of this Act if the contract of 9-10 purchase and sale binding the purchaser to purchase the property 9-11 was executed before that date. 9-12 (c) Property transferred before the effective date of this 9-13 Act is covered by the law in effect when the property was 9-14 transferred, and the former law is continued in effect for that 9-15 purpose.